EXHIBIT 4.45
AGREEMENT REGARDING SECURITY DOCUMENTS
THIS AGREEMENT REGARDING SECURITY DOCUMENTS (this "Agreement") is
made as of June 20, 1996 by SALTON SEA POWER GENERATION L.P., a California
limited partnership ("SSPG"), SALTON SEA BRINE PROCESSING L.P., a California
limited partnership ("SSBP"), FISH LAKE POWER COMPANY, a Delaware corporation
("Fish Lake", and together with SSPG and SSBP, the "Salton Sea Guarantors"),
CALENERGY OPERATING COMPANY, a Delaware corporation ("CEOC"), VULCAN POWER
COMPANY, a Nevada corporation ("VPC", and together with CEOC, the "Initial
Partnership Guarantors"), SALTON SEA ROYALTY COMPANY, a Delaware corporation
(the "Royalty Guarantor", and together with the Salton Sea Guarantors and the
Initial Partnership Guarantors, the "Initial Guarantors"), SALTON SEA FUNDING
CORPORATION, a Delaware corporation ("Funding Corporation"), MAGMA POWER
COMPANY, a Nevada corporation ("Magma"), and SALTON SEA POWER COMPANY, a
Nevada corporation ("SSPC", and collectively with the Initial Guarantors,
Funding Corporation and Magma, the "Acknowledging Parties"), in favor of
CHEMICAL TRUST COMPANY OF CALIFORNIA, a California corporation, as collateral
agent ("Collateral Agent") on behalf and for the benefit of the Secured
Parties and Funding Corporation under that certain Collateral Agency and
Intercreditor Agreement dated as of July 21, 1995, as amended, by and among
Collateral Agent, Funding Corporation, the Secured Parties and the other
parties named therein (the "Intercreditor Agreement") and that certain Trust
Indenture (the "Original Indenture") dated as of July 21, 1995 by and between
Funding Corporation and Collateral Agent, as trustee, as amended, modified or
supplemented, including pursuant to that certain Second Supplemental Trust
Indenture (the "Supplemental Indenture") dated as of the date hereof. The
Original Indenture, as amended, modified or supplemented, including pursuant
to the Supplemental Indenture is hereafter referred to as the "Indenture."
Capitalized terms used and not defined herein shall have the meanings set
forth in the Indenture.
RECITALS
WHEREAS, Funding Corporation is a corporation established for the
sole purpose of making loans to the Guarantors from proceeds of the issuance
of notes and bonds (collectively, the "Securities") in its individual capacity
as principal and as agent acting on behalf of the Guarantors pursuant to the
Indenture; and
WHEREAS, the principal and interest payments on the Securities are
serviced by repayment of loans made by Funding Corporation to one or more of
the Guarantors and the Securities are guaranteed by the Guarantors, subject to
the conditions set forth in the Indenture; and
WHEREAS, on July 21, 1995 Funding Corporation issued and sold
Securities in the aggregate principal amount of $475 Million (the "Initial
Securities"); and
WHEREAS, Funding Corporation used the proceeds from the sale of the
Initial Securities to make loans to the Initial Guarantors pursuant to credit
agreements between Funding Corporation and the Initial Guarantors (the
"Initial Credit Agreements"); and
WHEREAS, in connection with the issuance and sale of the Initial
Securities, the Initial Guarantors entered into guarantees in favor of
Collateral Agent (the "Initial Guarantees") whereby the Initial Guarantors
guaranteed certain of the obligations of Funding Corporation under the Initial
Securities; and
WHEREAS, in order to secure the obligations of the Initial
Guarantors under the Initial Credit Agreements, the Initial Guarantees and the
other Financing Documents, the Acknowledging Parties entered into various
security agreements in favor of Collateral Agent; and
WHEREAS, Funding Corporation has simultaneously with the execution
and delivery of this Agreement issued and sold Securities in the aggregate
principal amount of $135 Million (such Securities, along with all other
Securities hereafter issued under the Indenture, the "Additional Securities")
the net proceeds of which will be loaned to the Partnership Guarantors
(including Conejo, Niguel, San Felipe, BN/Geothermal, Del Ranch, Elmore,
Leathers and Vulcan) pursuant to that certain Amended and Restated Credit
Agreement (Partnership Guarantors) dated as of the date hereof between Funding
Corporation and the Partnership Guarantors (the "Amended and Restated
Partnership Credit Agreement"); and
WHEREAS, in connection with the issuance and sale of the Additional
Securities, the Partnership Guarantors entered into that certain Amended and
Restated Partnership Secured Limited Guarantee dated as of the date hereof in
favor of Collateral Agent (the "Amended and Restated Partnership Guarantee")
pursuant to which all the Partnership Guarantors (including Conejo, Niguel,
San Felipe, BN/Geothermal, Del Ranch, Elmore, Leathers and Vulcan) agreed to
jointly and severally guarantee certain of the obligations of Funding
Corporation under the Initial Securities and the Additional Securities as
provided therein; and
WHEREAS, the parties wish to enter into this Agreement in order to
supplement the Salton Sea Guarantee, the Royalty Guarantee and the Security
Documents entered into prior to the date hereof (the "Initial Security
Documents") and to acknowledge that (a) the obligations guaranteed by the
Salton Sea Guarantee and the Royalty Guarantee include the obligations of
Funding Corporation under the Additional Securities and the Amended and
Restated Debt Service Reserve Letter of Credit and Reimbursement Agreement
dated as of the date hereof by and among Funding Corporation, Credit Suisse
and the other Banks named therein (the "Amended and Restated LOC Agreement")
and (b) the obligations secured by the Initial Security Documents include
the obligations of the Acknowledging
Parties under the Guarantees, Credit Agreements and other Financing Documents as
amended, modified or supplemented hereby or otherwise in connection with the
Supplemental Indenture and the issuance and sale of the Additional Securities.
AGREEMENT
NOW, THEREFORE, in consideration of good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
1. Salton Sea Guarantee and Royalty Guarantee. Each of the Salton
Sea Guarantors and the Royalty Guarantor hereby acknowledges and agrees for
the benefit of the Collateral Agent acting for and on behalf of the Secured
Parties and Funding Corporation that the term "Indebtedness," as used in the
Salton Sea Guarantee and Royalty Guarantee, shall and is hereby expressly made
to include (to the extent it does not now so include), all principal,
interest, premium (if any), fees, charges, penalties, expenses, payments and
all other amounts due with respect to the Additional Securities and the
Amended and Restated LOC Agreement.
2. Initial Security Documents. Each Acknowledging Party hereby
acknowledges and agrees for the benefit of the Collateral Agent acting for and
on behalf of the Secured Parties and Funding Corporation that the obligations
secured by each Initial Security Document to which such Acknowledging Party is
a party shall and are hereby expressly made to include (to the extent they do
not now so include) all obligations of such Acknowledging Party (and of any
other Acknowledging Party whose obligations are secured by the terms of such
Initial Security Document), if any, under (a) the Amended and Restated
Partnership Credit Agreement, (b) the Amended and Restated Partnership
Guarantee, (c) the Salton Sea Guarantee as amended, modified or supplemented
hereby, (d) the Royalty Guarantee as amended, modified or supplemented hereby,
(e) the Additional Securities, (f) the Amended and Restated LOC Agreement and
(f) any other Financing Document entered into in connection with the
Supplemental Indenture and the issuance and sale of the Additional Securities
to which such Acknowledging Party is a party.
3. Amendment to Collateral Assignment. The Collateral Assignment
(Salton Sea Agreements) dated as of July 21, 1995 by SSPG, SSBP and FLPC is
hereby amended by inserting the following at the end of Exhibit A thereof:
"14. Technology Transfer Agreement dated February 15, 1996 among Magma,
SSBP, SSPG and FLPC."
4. Amendment to Consent. The Consent to Collateral Assignment
(Magma Power Company) dated as of July 21, 1995 by Magma and Collateral Agent
is hereby amended by deleting clause 2 of recital A thereof and inserting the
following in lieu thereof:
"2. Consenting Party, SSPG and SSBP have entered into that certain
Technology Transfer Agreement, dated as of March 31, 1993; and Consenting
Party, SSPG, SSBP and FLPC have entered into that certain Technology Transfer
Agreement, dated as of February 15, 1996 (collectively, the "Technology
Transfer Agreement")."
5. Amendment to Salton Sea Guarantee. The Salton Sea Guarantee is
hereby amended by adding the following after Section 17 thereof.
"18. The Salton Sea Guarantors shall continue to be bound by and perform
all of their obligations under the terms and conditions set forth in the
Salton Sea Credit Agreement for the benefit of the Funding Corporation and its
legal successors and assigns, the terms of which are incorporated herein by
reference, from and after the date that the Salton Sea Project Note is repaid
and until the payment in full of all other obligations under the Partnership
Project Note and the Royalty Project Note. The Salton Sea Guarantors' failure
to perform such terms and conditions shall, from and after the date that the
Salton Sea Project Note has been repaid, be an Event of Default hereunder."
6. Amendment to Stock Pledge Agreements. The Stock Pledge Agreement
(Pledge of Capital Stock of CEOC), the Stock Pledge Agreement (Pledge of
Capital Stock of VPC), the Stock Pledge Agreement (Pledge of Capital Stock of
FLPC) and the Stock Pledge Agreement (Pledge of Capital Stock of Royalty
Guarantor), each dated as of July 21, 1995 by Magma and Funding Corporation in
favor of Collateral Agent are hereby amended by replacing the words "Funding
Corporation" in the next to last line of Section 2.1 thereof with the word
"CEOC" in the Stock Pledge Agreement (Pledge of Capital Stock of CEOC), with
the word "VPC" in the Stock Pledge Agreement (Pledge of Capital Stock of VPC),
with the word "FLPC" in the Stock Pledge Agreement (Pledge of Capital Stock of
FLPC) and with the words "Royalty Guarantor" in the Stock Pledge Agreement
(Pledge of Capital Stock of Royalty Guarantor).
7. References to Original Indenture. From and after the date of
this Agreement all references in the Salton Sea Guarantee, the Royalty
Guarantee and the Initial Security Documents to the Original Indenture
(including for the purpose of defining capitalized terms) shall, unless the
context otherwise requires, mean the Original Indenture as amended, modified
or supplemented by the Supplemental Indenture.
8. Effect of This Agreement. From and after the date of this
Agreement, all references in the Security Documents and the Financing
Documents to the Salton Sea Guarantee, Royalty Guarantee or Initial Security
Documents shall mean the Salton Sea Guarantee, Royalty Guarantee or Initial
Security Documents, as applicable, as amended, modified or supplemented
hereby. Except as specifically amended, modified or supplemented above, the
Salton Sea Guarantee, Royalty Guarantee and Initial Security Documents shall
remain in full force and effect and are hereby ratified and confirmed. The
execution, delivery
and effectiveness of this Agreement shall not, except as expressly provided
herein, operate as a waiver of any right, power, or remedy of Collateral
Agent or any of the Secured Parties nor constitute a waiver of any provision
of the Salton Sea Guarantee, Royalty Guarantee or Initial Security Documents.
9. Headings. The headings, titles and captions of various sections
of this Agreement are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
10. Governing Law. THIS AGREEMENT IS GOVERNED BY AND
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed, and this Agreement shall be effective, as of the day and year
first above written.
SALTON SEA POWER GENERATION L.P.,
a California limited partnership
By: SALTON SEA POWER COMPANY,
a Nevada corporation, its general partner
By: /s/ John G. Sylvia
_____________________________________
Name:
John G. Sylvia
___________________________________
Title: Senior Vice President
__________________________________
SALTON SEA BRINE
PROCESSING L.P.,
a California limited partnership
By: SALTON SEA POWER COMPANY,
a Nevada corporation, its general partner
By: /s/ John G. Sylvia
_____________________________________
Name:
John G. Sylvia
___________________________________
Title: Senior Vice President
__________________________________
FISH LAKE POWER COMPANY,
a Delaware corporation
By: /s/ John G. Sylvia
_____________________________________
Name:
John G. Sylvia
___________________________________
Title: Senior Vice President
__________________________________
SALTON SEA FUNDING CORPORATION,
a Delaware corporation
By: /s/ John G. Sylvia
_____________________________________
Name:
John G. Sylvia
___________________________________
Title: Senior Vice President
__________________________________
MAGMA POWER COMPANY,
a Nevada corporation
By: /s/ John G. Sylvia
_____________________________________
Name:
John G. Sylvia
___________________________________
Title: Senior Vice President
__________________________________
SALTON SEA POWER COMPANY,
a Nevada corporation
By: /s/ John G. Sylvia
_____________________________________
Name:
John G. Sylvia
___________________________________
Title: Senior Vice President
__________________________________
CALENERGY OPERATING COMPANY,
a Delaware corporation
By: /s/ John G. Sylvia
_____________________________________
Name:
John G. Sylvia
___________________________________
Title: Senior Vice President
__________________________________
VULCAN POWER COMPANY,
a Nevada corporation
By: /s/ John G. Sylvia
_____________________________________
Name:
John G. Sylvia
___________________________________
Title: Senior Vice President
__________________________________
SALTON SEA ROYALTY COMPANY,
a Delaware corporation
By: /s/ John G. Sylvia
_____________________________________
Name:
John G. Sylvia
___________________________________
Title: Senior Vice President
__________________________________
CHEMICAL TRUST COMPANY OF
CALIFORNIA,
a California corporation,
as Collateral Agent
By: /s/ Rose Maravilla
_____________________________________
Name:
R. I. Maravilla
___________________________________
Title: Assistant Vice President
__________________________________